Long after NC closed meetings, details often kept off-limits

March 12, 2018

RALEIGH, N.C. (AP) — Hundreds of times a year across North Carolina, officials who control everything from the taxes you pay the city to the tuition required to attend public universities meet behind closed doors to conduct sensitive business on behalf of the public they serve.

Whether they're elected or appointed, members of these local and state boards can meet out of view of the public for almost a dozen legitimate reasons, like personnel decisions or discussions of legal strategy. When they do, they're supposed to keep an account of what happens — and barring specific exceptions, be able to provide that account to the public.

That's often not the case.

A collaborative investigation by 10 newsrooms across the state found that governing boards that meet in closed session are often slow to hand over legally required records that detail what they discuss in secret, if they provide them at all. When they are produced, they're often heavily redacted, raising questions about how closely those boards are following the law.

The project which included The Associated Press, WRAL, The News & Observer, The Fayetteville Observer and others was timed to coincide with Sunshine Week, a celebration of transparency and open government.

Every public board, whether it's a city council, county commission or state oversight authority, is required by North Carolina law to keep minutes of its meetings. But the board can close its meeting legally for any one of 10 specific reasons.

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While there's really no legal requirement for what needs to be recorded in the minutes of open meetings, the law says minutes of meetings behind closed doors must be extensive enough "so that a person not in attendance would have a reasonable understanding of what transpired."

"It doesn't have to be a verbatim record, but it has to provide a person with a sense of what happened," said Frayda Bluestein, professor of public law and government at the University of North Carolina at Chapel Hill. "Even if they didn't take any action, the public has a right to know what they talked about."

There are limits, however, on what boards can make public. State law allows officials to withhold records if releasing them would "frustrate the purpose" of the closed session — if the meeting included discussions of personnel issues, for example. But in other cases, the reasons for closing meetings are often temporary, said Jonathan Jones, director of the North Carolina Open Government Coalition at Elon University.

To test how government boards handle these accounts of closed meetings, 10 news organizations simultaneously submitted requests in early January for a year's worth of minutes from closed sessions at nearly 50 public bodies on the local, state and county level.

On one hand, the University of North Carolina Board of Governors within three weeks produced summaries of their 2017 closed meetings as well those held by a handful of committees, in some cases with background documents included.

But after more than two months, about a dozen boards had yet to turn over any minutes from closed sessions. Others provided accounts of only some of their 2017 meetings, or versions that were heavily redacted.

Bluestein said officials often wait until long after the meetings take place to make decisions on what to withhold.

Boards that didn't provide records by March 9 include: county commissions in Durham, Cumberland and Mecklenburg counties; Wilmington City Council; and North Carolina A&T University's board of trustees. None of these public bodies outright refused to release the minutes. Instead, many attributed the delay to office backlogs.

"Unfortunately, due to a heavy workload, there are still some pending 2017 minutes that have to be prepared," Durham County Clerk Michelle Parker-Evans wrote on Jan. 22. "I hope to have a response to you in the very near future."

Several other boards said their minutes needed review before they could be released.

That was the case in Mecklenburg County, where spokesman Leo Caplanides said an attorney must screen the minutes and redact material deemed to be confidential.

The Economic Development Partnership of North Carolina, the public-private group tasked with recruiting companies to the state, took six weeks to reveal that it wasn't planning to release anything until a March 23 board meeting, when partnership directors would review the records for "appropriateness," according to spokeswoman Mary Wilson.

The business recruitment organization attributed the late release, which for one meeting in February 2017 would mean it was delayed for more than a year, to a change in legal counsel in October. Before her firm came on board, EDPNC attorney Angie Vincent-Hamacher said, minutes of closed sessions were limited.

"In our view, the better practice is to maintain a more detailed separate account of what transpired in the closed session," Vincent-Hamacher wrote in an email. "Accordingly, after we came in as counsel, we started preparing separate minutes for the EDPNC."

EDPNC now has more detailed minutes for all closed sessions in 2017, Vincent-Hamacher said. Just how much will be released publicly will be up to the board, she said.

The Sunshine Week requests pushed some public bodies into decisions on what to release.

Three weeks after the North Carolina State Ports Authority's meeting minutes from 2017 were requested, the group's board of directors voted to approve summary accounts of each of the year's meetings. The records show discussions of staff salaries, a potential business relocation at the Port of Wilmington and a planned railroad hub there.

Records of the Crime Victims Compensation Commission's quarterly meetings showed the panel only closed doors to discuss awards to victims privately at its December meeting. No one had attended the previous meetings except for the commissioners and staff, so there had been no need to close earlier meetings, a spokesman said.

Amanda Martin, a Raleigh attorney who often represents media organizations in lawsuits over government access, said there is wide variation in how boards handle minutes from closed sessions because there's no set process in the law for how they should be approved.

There are cases when open government advocates say public boards veer too far from transparency.

The Fayetteville City Council and its committee overseeing a $33 million minor league baseball stadium project released minutes from 34 closed meetings in response to the January requests. Four of the meetings involved discussions about the baseball stadium and private construction going on around it.

Boards often cite attorney-client privilege when going into closed session. And on May 8, the council cited that exemption for a closed session that included David Lane, general manager for the baseball team that will play in Fayetteville's new stadium. Lane expressed concerns on behalf of the Houston Astros affiliate about the stadium design, the minutes said.

Hearing from the baseball team's representative had nothing to do with hearing private legal advice, Elon University's Jones said.

"The presence of the Astros representative destroys the attorney-client privilege," Jones said. "The meeting could not legally be closed for attorney-client communications with him in the room."

City attorney Karen McDonald disputed that analysis of the open meetings law.

"The attorney-client exception allows the council (a public body) to go into closed session to consult with an attorney employed or retained by the public body," McDonald said. "This exception also permits other persons to participate if their presence is necessary to the issue being discussed."